Kirton v Tetrosyl Ltd.

For the progressive-condition protection in paragraph 8(1) of Schedule 1 to the Disability Discrimination Act 1995, an impairment may result from the condition even where it is caused by standard treatment made necessary by that condition. The phrase is not confined to symptoms immediately referable to the disease. The protection can also apply where the present impairment has only a non-substantial effect and the impairment likely to have a substantial adverse effect in future is different in kind or symptoms. The statutory question is whether the impairment is sufficiently linked to the progressive condition in its medical and factual context.

Mr Kirton, an employee of Tetrosyl Limited, developed urinary incontinence following surgery for prostate cancer. The Employment Tribunal tried as a preliminary issue whether he was a disabled person under the Disability Discrimination Act 1995. It found that the incontinence had no substantial adverse effect and was caused by the operation rather than the cancer. The Employment Appeal Tribunal dismissed his appeal on 23 August 2002. The issue before the Court of Appeal was whether the operation-related impairment could satisfy paragraph 8(1) of Schedule 1, given that the cancer was progressive and likely to cause a substantial impairment in the future.

The appeal was unanimously allowed. The matter was remitted to the Employment Tribunal to proceed on the basis that Mr Kirton was disabled within the meaning of the Act.

1. Statutory purpose and trigger. Lord Justice Pill treated Schedule 1 as explanatory of, and as elaborating, the general definition in section 1. Paragraph 8 protects people with progressive conditions from the point at which an impairment first has some effect on normal day-to-day activities, provided the condition is likely to result in a substantial adverse effect. Diagnosis alone is insufficient, and the present effect need not itself be substantial. This approach was also stated by Lord Justice Scott Baker.
2. Causation. The expression as a result of that condition had to be construed in the statutory and medical context. Urinary incontinence caused by a standard prostatectomy necessitated by prostate cancer was sufficiently linked to the cancer, despite the intervening surgical treatment. The phrase was not confined to symptoms immediately referable to the disease, and there was no need to add words referring expressly to treatment. The court took account of the purpose-sensitive approach to causation discussed in Environmental Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22.
3. Future impairment. The closing words of paragraph 8(1) were not excluded because the present impairment and the future substantial impairment might differ in kind or symptoms. The statutory provisions had to be followed systematically, with the causative link assessed in the particular factual and medical setting.
4. Order. The appeal was allowed; the case was remitted. Costs were to be paid as agreed, and permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) allowed the appeal and remitted the matter to the Employment Tribunal, [2003] EWCA Civ 619.
• Employment Appeal Tribunal dismissed the appeal against the Employment Tribunal’s decision on 23 August 2002.
• Employment Tribunal, Manchester decided on 24 January 2001, as a preliminary issue, that the appellant was not disabled for the purposes of the Act.